Unlike any other type of culture, popular culture—a full-fledged style of living with a distinct pattern of feeling, thinking, believing, and acting— was made possible and in the end necessary by mass production. Unless the requirements and effects of industrialization are fully grasped, popular culture does not become intelligible.

In the last two centuries, machinery and specialization have immensely increased economic productivity—the amount of goods produced per manhour—in Europe and America. This process has gone farthest in America, where popular culture too has gone farthest. Although enrichment led to a vast population increase, production per head rose stupendously and is still rising. Everybody benefited materially, but the main beneficiaries were the poor. Their income rose most. Furthermore, if the income gap between poor and rich had not narrowed as it did, an expanded national income distributed in unchanged proportions still would have augmented the welfare of the poor disproportionately. If the income of poor and rich alike increases by 50 per cent, the welfare of the poor is raised far more than that of the rich. Our progressive tax system—which taxes additions to the income of the poor less than additions to the income of the rich—is based entirely on this roughly correct view.

The moral argument contends that crimes deserve retribution, that to impose the deserved punishment is to do justice, and that justice is a moral requirement, an end in itself, independent of any useful effects. The moral desirability of justice can be explained, but not demonstrated in non-deontological fashion. In penal matters, justice and deserved retribution are synonymous. It is for the sake of justice that we try to punish the guilty and not the innocent. Innocents do not deserve punishment. Because of justice, we would not impose punishment on them, even if it were useful to do so.

In Zadig, published in 1748, Voltaire wrote of “the great principle that it is better to run the risk of sparing the guilty than to condemn the innocent.” At about the same time, Blackstone noted approvingly that “the law holds that it is better that ten guilty persons escape, than that one innocent suffer.” In 1824, Thomas Fielding cited the principle as an Italian proverb and a maxim of English law. John Stuart Mill endorsed it in an address to Parliament in 1868. General acceptance of this maxim continues into our own period, yet it is difficult (and for us so far, impossible) to find systematic attempts to defend the maxim. It is treated as a truism in no need of defense. But the principle within it is not at all obvious; and since it undergirds many of our criminal justice policies, we should be sure that it is justifiable. First, however, we must clarify what the principle means.